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Quote For The Day

Alderson B. once said to abusive cross-examining counsel “Mr. ______, you seem to think that the art of cross-examination is to examine crossly.”

- Serjeant Ballantine, Experiences of a Barrister’s Life 105 (1882)

Communis error sometimes creeps in not so much by positive doctrine or assertion as by mere assumption which is treated, and continues to be treated, as well founded only because it is not challenged. There are many principles of law which are regarded as so elementary that they need no demonstration by argument in court; but it sometimes happens that propositions which seem to be elementary, and thus grow into a communis error, are found, under criticism, to be disputable.

Individuals with Borderline Personality Disorder have a pattern of unstable and intense relationships. … They may idealize potential caregivers or lovers at the first or second meeting. … However, they may switch quickly from idealizing other people to devaluing them … These individuals are prone to sudden and dramatic shifts in their view of others, who may alternately be seen as beneficent supports or as cruelly punitive. Such shifts often reflect disillusionment with a caregiver whose nurturing qualities had been idealized … These individuals may suddenly change from the role of a needy supplicant for help to a righteous avenger of past mistreatment. …

I will do right to all manner of people after the law and usages of this Realm without fear or favour, affection or ill-will.

- English High Court Judge’s oath of office, ca. 1941

If all the good people were clever
And all clever people were good,
The world would be nicer than ever
We think that it possibly could.
But alas! It is seldom or never
That the two hit it off as they should;
For the good are so hard on the clever
And the clever so rude to the good.

Indeed the two last of the lines might perhaps have been adapted:

For the Dons are so hard on the judges
And the judges so rude to the Dons.

- Serjeant Ballantine, Experiences of a Barrister’s Life 105 (1882)

The late Mr. Theobald Mathew – clarum et venerabile nomen – with his inimitable gift of condensation, has summarized once and for all the functions of a Judge of first instance. He should be ‘quick, courteous and wrong.’ Wrong, because otherwise there would be nothing left for the Court of Appeal to do. I wish Mr. Mathew could have found time to embalm the functions of a Judge of the Court of Appeal in some equally compact formula. Do not let us, however, jump to the conclusion that a Lord Justice should be ‘quick, courteous and right.’ This would run counter to Mr. Mathew’s own principle since no work would then be left for the House of Lords. The Lords of Appeal in Ordinary must not lightly be defrauded of their statutory prey.

- Sir Cyril Asquith, L.J., article in (1950 1 J.S.P.T.L. (ns) 350

But once Counsel has fully deployed his material and his submissions, there is in my view far more to be gained than lost by the heckling which follows. No doubt it is irksome to Counsel: but a litigant with a strong case has everything to gain and nothing to lose by this process. In its absence, both sides would be left in ignorance of what is passing in the tribunal’s mind, and where what is so passing is fallacious, would be denied the opportunity of correcting it.

- Sir Cyril Asquith, L.J., article in (1950 1 J.S.P.T.L. (ns) 356

Nothing is more dangerous than to allow oneself liberty to construct for the parties contracts which they have not in terms made by importing implications which would appear to make the contract more business-like or more just. The implications to be made are to be no more than are ‘necessary’ for giving business efficacy to the transaction: and it appears to me that both as to existing facts or future facts a condition should not be implied unless the new state of facts makes the contract something different in kind from the contract in the original state of facts.

It is suggested that the deceased must have been, or ought to have seen, the tramcar, and had no right to assume it would have been slowed down, or that its driver would have ascertained that there was no traffic with which it might come in contact before he proceeded to apply his power and cross the thoroughfare. But why not assume these things? It was the driver’s duty to do them all, and traffic in the streets would be impossible if the drivers of all the other vehicles will do what it is their duty to do ̶ namely, observe the rules regulating the traffic of the streets.

- Frederick Edwin Smith, Earl of Birkenhead, n.d. quoted by Sir Norman Birkett in
his Six Great Advocates 12 (1961).

Mr. Kenealy has ventured to suggest that the retainer of counsel in a case simply implies the exercise of his power of argument and eloquence. But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause … Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client.

It was very good of God to let Carlyle and Mrs. Carlyle marry one another and so make only two people miserable instead of four.

- Samuel Butler (Nov. 21, 1884 letter)

…; and if juries do not prevent [libels] they may prove fatal to liberty, destroy Government and introduce anarchy; but tyranny is better than anarchy, and the worst Government better than none at all.

I have rarely heard a speech more precisely directed to the object under debate, more harmoniously attuned to the character of Committee discussion, than the excellent statement the Honourable and learned Gentleman has just made. It seemed to me that there could hardly be a more damaging speech from the point of view of the Attorney-General himself. Not only were his facts traversed, not only was his legal authority impugned and even controverted, but these sharp arrows were planted in his person by his distinguished legal successor in his old primacy on the Liberal benches. He has been able to answer him in fact and law and leave him a sprawling, and pitiable object.

Gentlemen, I have said before, and I take the freedom to repeat, that it is far more important the law should be administered with absolute integrity, than that in this case or in that the law should be a good law or a bad one. The moment juries or judges go beyond their functions, and take upon themselves to lay down the law or find the facts, not according to the law as it is, but according to the law as they think it ought to be, then the certainty of the law is at an end; there is nothing to rely upon; we are left to the infinite variety and uncertainty of human opinion; to caprice which may at any moment influence the best of us; to feelings and prejudices, perhaps excellent in themselves, but which may distort or disturb our judgment, and distract our minds from the single simple operation of ascertaining whether the facts proved bring the case within the law as we are bound to take it.

None are so fond of secrets, as those who do not mean to keep them; such persons covet secrets, as a spendthrift covets money, for the purpose of circulation.

- Colton, Rev. C.[aleb] C., Lacon or
Many Things in Few Words (1820) at p. 36

He that abuses his own profession, will not patiently bear with any one else that does so. And this is one of our most subtile [sic] operations of self-love. For when we abuse our own profession, we tacitly except ourselves; but when another abuses it, we are far from being certain that this is the case.

- Colton, Rev. C.[aleb] C., Lacon or
Many Things in Few Words (1820) at p. 42

There are minds so habituated to intrigue and mystery in themselves, and so prone to expect it from others, that they will never accept of a plain reason for a plain fact, if it be possible to devise causes for it that are obscure, far fetched, and usually not worth the carriage.

- Colton, Rev. C.[aleb] C., Lacon or
Many Things in Few Words (1820) at p. 42

Always suspect a man who affects great softness of manner, an unruffled evenness of temper, and an enunciation studied, slow, and deliberate. These things are all unnatural, and bespeak a degree of mental discipline into which he that has no purposes of craft or design to answer, cannot submit to drill himself. The most successful knaves are usually of this description, as smooth as razors dipped in oil, and as sharp. ̶ They affect the innocence of the dove, which they have not, in order to hide the cunning of the serpent, which they have.

- Colton, Rev. C.[aleb] C., Lacon or
Many Things in Few Words (1820) at p. 81

Much may be done in those little shreds and patches of time which every day produces, and which most men throw away, but which nevertheless will make at the end of it, no small deduction from the life of man. Cicero has termed them intercisiva tempora (cut up times), and the ancients were not ignorant of their value; nay, it was not unusual with them either to compose or to dictate, which under the operation of rubbing after the bath.

- Colton, Rev. C.[aleb] C., Lacon or
Many Things in Few Words (1820) at p. 204

… It was a serious contempt of court accompanied by unblushing lies on Woodall’s part; and the mere fact that no harm has been done in this particular case is neither here nor there. It would be unfortunate if the idea got abroad that if people threaten witnesses in this way, the worst that is likely to happen to them will be that they will have to pay some costs and make an apology. That is certainly not a course which I can adopt in this case. Nor do I think that the case is appropriate for a fine. This is a case in which I think it is my duty to make a committal order. … Weighing one thing with another, I propose to commit Woodall to prison for four weeks.

- Sir Geoffrey Cross J., in Re J.A.B. [1965] 2 All ER 175

In England the idea of legal equality, or of the universal subjection of all classes to one law administered by the ordinary courts, has been pushed to the utmost limit … every official, from the Prime Minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The Reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private or unofficial person.

- Albert Venn Dicey, Law of the Constitution p. 193-94 (9th ed. 1952)

The ground of the application is stated to be public policy, which the Queen’s advocate seemed to think was of itself almost sufficient to induce the Court to grant the prayer. I cannot, however, hold to that view; it is necessary to show that the step proposed to be taken is comformable to law. Undoubtedly this Court, as all other Courts, is desirous to carry into effect the views of Her Majesty’s Government; nevertheless, it must not venture to go beyond the limits of legal authority. In a country governed by settled laws, it is necessary for Courts to be guided by those laws, and not by the will and desire of a Government.

It is the function of a court of law to give effect to the enactments of the legislature according to the force of the language which the legislature has finally chosen for the purpose of expressing its intention. Speculation as to what may have been passing in the minds of the members of the legislature is out of place, for the simple reason that it is only the corporate intention so expressed with which the court is concerned. Besides that road ̶ the road of speculation ̶ leads into a labyrinth where there is no guide.

Arthur Miller, who sits on the Advisory Committee for the Federal Rules of Civil Procedure, once observed that in many ways ‘[contemporary litigation is analogous to the] dance marathon contests. The object [of the exercise] is to get out on the dance floor, sort of hug your opponent, and move aimlessly and shiftlessly to the music with no objective in mind other than to outlast everybody else.’ That is precisely what happens in a great deal of civil litigation in our state and federal courts.

… High-conflict personalities are in court because they are difficult, not because they have legitimate disputes. I believe that over the past ten years our courts have become a prime playing field for undiagnosed and untreated personality disorders. This is because the adversarial court process has a similar structure to their disorders … Purpose is deciding who is to blame; who is ‘guilty’ … Can hear or give testimony on past behavior of others …

… [High-conflict personalities] are often effective at making innocent people look guilty, while at the same time with their desperate charm and aggressive drive they often succeed at looking innocent themselves.

A more emotionally aggressive party (or attorney) may be more successful in capturing the attention and sympathies of the judge and jury … A more emotionally reasonable or passive party (many a true victim) can appear less persuasive … Ironically, … courts are more accurate when considering written information and documents only ̶ screening out visual and verbal peripheral distractions ... it appears that the Court of Appeals can often more accurately and objectively understand these cases, while trial courts seem to be more affected by peripheral persuasion.

From the Desk of the Honourable Jean E. Côté, Lately a Justice of the Court of Appeal of Alberta:

Friday, November 30, 2018 - European Court Helps You Twice

Whatever you think of the European Union, the Greek economy, Brexit, and the E.U.’s various legal and constitutional policies, the European Court of Justice has written two judgments on practical topics. They may well be relevant ...

Adding new evidence before the Court of Appeal which was not in the court or tribunal appealed from, is unusual. It requires special procedures. The Rules say so. See also the Stevenson & Cote Handbook, R.14.45 n.A. The Court has developed some additional practices and procedures on this topic. Sometimes the situation arises unexpectedly, at an awkward stage ...

Alberta litigants are being slowly starved without noticing it. The proportion of necessary legal expenses which the winner of a lawsuit can recover in costs keeps drying up. There are a dozen reasons for that, some deliberate, some the product of neglect. Many stem from ...

A. Introduction
Two recent English decisions make one think. The precise legislation and legal conclusions discussed in them may well not apply in Alberta. But they raise some basic universal aspects of enforcing settlements or other agreements in disputes. So trying to distinguish the English cases is somewhat beside the point. These cases suggest that you re-think how you would enforce a settlement ...

The Court of Appeal has had to emphasize and enforce two legal rules. Evidently some counsel do not know them or are uncertain about their boundaries.

The first rule is that every party to a lawsuit must get formal notice of every application (motion) made in that lawsuit. Even if the party moving thinks that some of the parties to the suit would not be affected by the application, e.g. because their role or connection is presumed to be narrow. One neverr ...

For years, Alberta courts were very reluctant to dismiss a lawsuit for delay (nonprosecution). That has now changed radically, partly because of the backlog of deserving lawsuits being actively pursued. Aiding that change is the Supreme Court's culture shift in civil and criminal cases toward faster litigation. The right to access the courts is conditional on not abusing that right. Plaintiffs should keep their suits ...

Summary judgment is extremely popular at present, given the Supreme Court of Canada's new receptive philosophy. And the topic extends beyond summary judgment. Many times in chambers there is a big issue over whether a judge can decide topics on affidavits, or whether trial of an issue, or a full trial, will be needed. Some ...

The Court of Appeal has issued a carefully-written and researched judgment which every litigation lawyer should read. (It is cited near the end of this blog.) The appeal was from Anton Piller orders and Mareva injunctions and similar freezing orders. But the Court’s discussion is not confined to such topics. In particular, ...

About 1940, a British expert committee gave a very thoughtful report on how to give the profession and the public meaningful access to court decisions. The British had a few other things on their mind that year, and resources were thin. That valuable report is long forgotten. Then in the 1970s the Canadian Law Information Council did similar work,

Many procedural technicalities in criminal law are now popular, even constitutionally entrenched. But civil procedure has moved the other way. Every set of Rules of Court, many statutes, and two thirds of the decided cases, say that most slips should be ignored or cured. Particularly when they have not prejudiced anyone.

Everyone gives lawyers shopworn advice. One piece is to settle your clients' disputes early. No one disagrees: litigation today is more disappointing than ever, and very few pieces of litigation ever get to trial. But does that frequent advice work? Most settlements occur far too late, after both sides have sunk or wasted huge sums on the lawsuit. An increasing number of suits are just abandoned, or dismissed for want of prosecution.

Master Schlosser has discovered and explained what appears to be a serious gap in the Rules of Court. It is in the Rules dealing with adding parties. Once the pleadings have closed, it takes a court order to add a new party to a lawsuit. Rule 3.74 covers that, and allows an order in two circumstances.

When can the court make a solicitor pay costs personally? The case law was strict, almost prohibitive. But in May 2017, the Supreme Court of Canada issued a new judgment on the subject: Director of Criminal and Penal Prosecutions v. Jodoin2017 SCC 26. If one looked only at the statement in Jodoin of the test for such an order, (or its routine statement that this will not come up often), one might think that the change made by Jodoin was small. But if one looks at the facts of the case, and the description of the basic underlying principles, there are considerable indications that from now on, it will be easier for courts to award costs personally against solicitors. The Supreme Court makes it clear that all courts have that power, including statutory courts such as Provincial Court or the Federal Courts.

Alberta’s Court of Queen’s Bench are working exceptionally hard, but despite their efforts bad backlogs have built up. It is not the judges' fault, but you can wait a long time for a trial or even to have your interlocutory application heard. That can do serious financial harm to your client, quite apart from the mental strain and depression of hope deferred.

What can you do to surmount the problems caused by the big backlogs? Here are some possible avenues to investigate: the law of interest matters: brush up on it, and keep it in mind when drafting a contract or trust conditions, and throughout a lawsuit; ...

One of Canadian law’s oddities is that many judges love to enforce procedural rules in criminal law, but scorn such rules in civil cases. That discrepancy has been greatest on the topic of dismissal for want of prosecution. And the Ontario Court of Appeal has shown the most marked example of that inconsistency. One looked hard to find any Ontario cases dismissing a civil case for non-prosecution.

Many civil decisions said that a hiatus of well over 10 years had no serious effect on the quality of evidence, even in the face of a legislated presumption of prejudice after years ...

Sometimes you form a strong suspicion that your opponent has not made full enough disclosure in its affidavit of records. That suspicion is often wise, as many parties' search for relevant records is very skimpy and ill-informed. But actual evidence that that disclosure is incomplete is usually poor and indirect.

So what should doubting counsel do? Often they at once apply for a further and better affidavit of records, just relying on omission of one or two minor pieces of paper, and some suggestive clues. Likely that is not enough ...

Lawyers constantly work to induce people to agree to things. Lawyers often see their task as bending the will of the opponent, and the very word "persuade" seems to reinforce that..

But recent psychological research on mediation strongly suggests that that is not quite correct. Indeed, an opponent who is not very interested in his or her own welfare and position, or evaluating it, is less likely to reach an agreement or stick to such an agreement. Why is not clear; doubtless there are several reasons. Therefore, ...

One of the most vexed questions for courts to decide, is what is a question of law and what is a question of fact. Many consequences can come from such characterization.

We all used to think that we knew one thing. There was no appellate deference to trial court decisions on questions of law. But then the Supreme Court of Canada started giving extra levels of deference to administrative tribunals. More recently, inSattva Cap. Corp. v. Creston Moly Corp.,it held that generally interpretation of a contract is not a question of law and so appellate deference is owed, ...

The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

Justice Côté recently retired from the Court of Appeal of Alberta and currently acts as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.